Massachusetts Appellate Decision on Malpractice Rules

Last week, the intermediate-level appeals court of Massachusetts reestablished a lawsuit accusing a hospital’s staff of causing a post-surgery patient to fall and break her hip. In Owens v. Erazo (22-P-1204), the appeals court disagreed with a medical malpractice tribunal that had categorized the incident as simply an “unfortunate medical result.”

A panel of three Appeals Court judges reversed a Suffolk County judge’s decision to dismiss a lawsuit. The suit alleges that a nurse and physical therapist, employed by Brigham & Women’s Faulkner Hospital, failed in their duty to accurately assess the fall risks for a patient. This alleged failure led to the patient falling and fracturing her hip after undergoing hip surgery.

Ms. Owens, the plaintiff, had been hospitalized after undergoing hip surgery, during which she experienced an injury. As a result, she instigated a medical malpractice lawsuit against Erazo (R.N.), Agustin (P.C.A.), O’Hara (P.T.), and Brigham & Women’s Faulkner Hospital. The defendants, Erazo and O’Hara, subsequently put forth requests for a medical malpractice tribunal, as described in G. L. c. 231, § 60B.


Massachusetts Personal Injury Law and Settlements

About the Massachusetts Malpractice Tribunal Requirement                                         

All prospective medical malpractice plaintiffs in Massachusetts are required to submit their claims for review by a malpractice tribunal prior to filing a lawsuit in court. The tribunal reviews the facts of the case and the plaintiff’s claims and issues an advisory opinion as to whether the claims have any merit. If the advisory opinion finds that there is evidence of malpractice, it can be used in court by the plaintiff. If a plaintiff is unsuccessful at the tribunal, they are required to post a $6,000 bond which will be forfeited if the case is lost. G. L. c. 231, § 60B

Tribunal Verdict and Subsequent Appeal

In the case on appeal, the plaintiff had presented her claims to a tribunal prior to filing suit. The state medical malpractice tribunal had ruled in favor of the hospital, determining that there was insufficient evidence to support the patient’s claims.

The plaintiff claimed that she was not able to post the required bond, prompting a Superior Court judge to enter judgment in favor of the defendants, following Mass. R. Civ. P. 54 (b). Owens appealed the decision, arguing that the medical malpractice tribunal made an error in concluding that her injuries were a result of an unfortunate medical outcome.

Detailed Circumstances Surrounding the Injury

Owens had sought treatment at the hospital in March 2019 due to severe hip pain. Subsequently, she had a hip replacement surgery on May 8, 2019. The operation was successfully concluded by 12 P.M. By 3:10 P.M., she had a meeting with physical therapist O’Hara who assessed Owens’s physical restrictions and physical therapy requirements. This assessment was thoroughly outlined by the expert in the plaintiff’s expert affidavit.


The expert’s summary provided a detailed list of Owens’ physical limitations, which included: impaired right hip range of motion, reduced right leg strength, and pain-causing ‘balance impairments and gait deviations’. Her functional limitations included difficulty with sit-to-stand, bed-to-chair, and supine-to-sit [and] sit-to-supine transfers, impaired walking ability, and trouble with stairs. It was noted she was at high risk of falls and required certain safeguards and adjustments for her mobility.

The Accident and the Morse Fall Scale

On the same day, defendant Erazo checked on Owens multiple times, noting her Morse Fall Risk score as low (35 at 1:29 P.M. and 45 at 4 P.M.).

The Morse Fall Scale is a rapid and simple method of assessing a patient’s likelihood of falling. Nursing home lawyers are familiar with this test because it comes up frequently in nursing home cases.

A number of factors are considered in this risk assessment, including the patient’s history of falling, secondary diagnoses, ambulatory aids, intravenous (IV) therapy, type of gait, and mental status. Each of these factors is assigned a numerical score, and these scores are added together to form a total score. The higher the total score, the higher the patient’s risk of falling. A score of 0-24 is considered low risk, 25-44 is considered medium risk, and 45 or higher is considered high risk.

In this case, the Morse Fall Scale scores assigned by one of the defendants to the patient were in the low-risk range, indicating a significant discrepancy between the defendants’ and the plaintiff’s assessments of fall risk.

Her Injury

Around 7 P.M., Owens requested assistance to get out of bed and use the bathroom. It was then that the P.C.A., Agustin, came to assist her. As Owens attempted to get out of bed, she slipped, fell, and re-injured her surgically repaired hip.

Assessments of Owens’s fall risk showed significant inconsistencies. Even after the fall, her fall risk was assessed differently by various personnel. For instance, P.C.A. Agustin and a nurse noted that Owens required “minimal assistance”, while another nurse assessed Owens as needing “moderate assistance” with bed mobility and transfers. The attending physical therapist even noted that Owens needed a “rolling walker with front wheels” and that she required “supervision or physical assistance from one person” when moving about.

These disparities in assessments raise questions about the thoroughness of the personnel’s understanding of Owens’s condition and the level of caution required in handling her post-operative needs. The gaps in knowledge or communication serve as evidence to support the plaintiff’s claim that the hospital’s personnel were negligent in managing her care.

Court’s Finding

Based on the submitted medical records, the court found that Owens’s fall could have been caused by an error on the part of P.C.A. Agustin, who had disconnected an IV from a port in Owens’s arm and placed a walker next to her bed. As Owens started to stand up using the walker, her feet slipped on a wet floor caused by leakage from the disconnected IV.

This information was corroborated by Owens’s husband, who noticed the liquid on the floor and heard the head nurse questioning who had unhooked the IV bag. A separate nurse described the IV as “leaking.” Furthermore, a report submitted by the hospital to the Department of Public Health classified the injury as “likely preventable.”  The idea that an injury that is likely preventable and has an expert supporting it is ridiculous.

So the court found that given the lenient standard of proof at this nascent stage of the litigation, the defendants’ demand for greater specificity is inappropriate.  “The level and substance of communication within the patient’s healthcare team is under the defendants’ control; the patient cannot be held responsible for not producing it.”

At this juncture in the case, the opinion of the patient’s medical expert that staff members failed to correctly assess the patient’s fall risk or effectively communicate such potential risks to other staff members serves as sufficient evidence to support the patient’s lawsuit, the court said.

“While the evidence discovered later may or may not portray a different situation, for the purpose of the tribunal, this sequence of events, in conjunction with the expert’s opinion, when viewed in the light most favorable to the plaintiff, was ‘sufficient to raise a legitimate question of liability, with proper evidentiary substantiation to follow,'” the panel said.

The panel also noted evidence showing the patient used a wheelchair before her surgery, had certain medical conditions, and that a medical assistant under the nurse’s supervision left the patient unattended for an unknown duration, against the physical therapist’s directive.

“It’s a reasonable inference, when considering the offer in the light most favorable to the patient, that one or more professionals either underestimated the fall risk or failed to communicate the fall risk to others…” the opinion said.


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